Sabarimala reference hearing: Live updates from Supreme Court - Day 14

A Constitution Bench of the Supreme Court is examining seven important legal questions concerning religious rights and freedoms in India. The top court began hearing the reference arising out of the Sabarimala review case on April 7.

The Court's verdict will have a major impact on various cases, including the case concerning whether women of menstruating ages can be allowed to enter the Sabarimala temple in Kerala.

The reference is connected to the top court's September 2018 verdict in which a 5-judge Constitution Bench, by a majority of 4:1, allowed women of all ages to enter the hilltop shrine in Kerala. That decision overturned the tradition that restricted the entry of women of menstruating age.

Dozens of review petitions were filed questioning the correctness of this ruling. In November 2019, the Supreme Court pronounced its judgment on the review petitions. 

It held that larger issues pertaining to the Essential Religious Practices Test, interplay between Articles 25 and 26 on one hand and Article 14 on the other and the conflict between the judgments in the Shirur Mutt case and Durgah Committee case will have to be decided by a larger Bench. 

A nine-judge Bench comprising Chief Justice of India (CJI) Surya Kant along with Justices BV Nagarathna, MM Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B Varale, R Mahadevan and Joymalya Bagchi is hearing the matter.

The reference verdict may also have an impact on pending cases regarding the entry of Muslim Women in Dargahs /Mosques, excommunication of Parsi Women married to non-Parsis, the practice of female genital mutilation and excommunication practices in the Dawoodi Bohra community.

During the hearing on April 7, the Central government advocated for greater freedom in religious practices and asked whether courts are the appropriate forum to determine what constitutes an essential religious practice. On April 8, the government argued that that the restriction at the Sabarimala temple was not based solely on gender.

On April 15, the Court observed that one of the most difficult tasks for a court is to declare the beliefs of millions of people as wrong or erroneous, and that a religion cannot be stripped of its essential practices in the name of social reform.

On April 17, the Court observed that while adjudicating matters of faith, a constitutional authority must rise above personal religious beliefs and be guided by freedom of conscience and the broader constitutional framework.

On April 21, the Court remarked that it is aware of the limits of judicial review in religious matters and that there was no need for extensive arguments against it.

On April 22, the Court asked whether the State can invoke the principle of constitutional morality and Directive Principles of State Policy to justify social reform laws on religious matters.

On April 23, the Bench briefly debated on whether pre-constitutional religious customs could be protected by Article 25(2) of the Constitution of India. 

On April 28, the Court warned against making arguments that could project any one religion or Indian language as superior to others. 

On April 29, the Court observed that genuine women devotees of Lord Ayyappa may wait till they cross the age of 50 years to visit the Sabarimala temple. The Court also said that it does not want to play any part in the annihilation of a religion while interpreting the scope of religious freedoms on India.

On May 5, the Bench posed tough questions on why a 2006 PIL on the Sabarimala temple entry issue was filed or entertained by the Court at all. The Court observed that the practice of excommunicating Parsi women who marry outside their community appeared to be discriminatory. 

On May 6, the Court began hearing arguments against excommunication practices in the Dawoodi Bohra community. 

On May 7, the Court observed that it should be cautious while dealing with challenges to religious practices.

Live updates from the hearing today feature on this page.

Senior Advocate Jaideep Gupta: For instance, in the Ananda Margi case, namely Acharya Jagdishwaranand, the followers used to take out annual processions in which they performed the Tandav dance. There was no dispute that the Tandav dance formed part of their religious practice.

However, Section 144 notices were issued because there was an apprehension of breach of peace. The notices were challenged on the ground that the followers had a religious right to perform the Tandav dance publicly.

This Court held that while the Tandav dance may indeed form part of their religious practice, it was not essential for the practice to be carried out in public. Therefore, the Section 144 restrictions were upheld.

Gupta: The earlier discussion concerned conflicts either within the same religion or between two religions. But here the conflict is of a different nature. The conflict here is between what constitutes a religious practice and what constitutes a secular activity associated with religion.

That distinction itself is not expressly articulated in constitutional language as “religious practice versus secular activity,” but it emerges from the interpretation of Article 25.

At one point, Your Lordships had asked whether there exists any test to distinguish the two. The only judgment which directly addresses such a test is Ratilal. That judgment says that ultimately common sense will have to be applied.

Now, that may not provide a complete answer, but it is the only guidance available on how one determines whether something is secular or religious.

At that stage, much depends on where the balance is drawn. A person deeply rooted in scriptural traditions may draw the balance more toward the religious side. On the other hand, someone approaching the issue purely from a constitutional perspective may draw the balance more toward secularism.

Therefore, ultimately, this becomes a matter for judicial determination. I am not suggesting that Your Lordships should formulate an exhaustive test. It may well be left to courts to determine on a case to case basis in appropriate matters.

Justice Aravind Kumar: If something is followed for centuries why do you want to deprive them of it?

Gupta: It was not being followed that is the point.

Senior Advocate Gupta: Now, as far as social welfare and reform are concerned, I only wish to make one submission. Why are these concepts located within the constitutional provisions dealing with religion at all? If the issue were merely social, then there would be no reason for it to appear within the articles on religious freedom.

The reason, I respectfully submit, is that many social rules and practices historically came to be sanctified as religious customs. Therefore, if the State wishes to undertake social reform, it may inevitably have to engage with religion itself. That is why the Constitution expressly grants that power to the State.

And this is important: this is not judicial review in the strict sense. This is not about the Court itself deciding matters of reform. It is about the State making that determination through legislation.

The Constitution itself creates a separate compartment for such legislative intervention, thereby making it clear that when the State acts for social welfare and reform under Article 25(2)(b), it is not necessarily trespassing upon protected religious rights.

Gupta: Essential part of Hindu religion is right to worship an idol. If you exclude them from it you exclude them from practicing religion ...

Justice Nagarathna: In the name of social reform, you cannot breach or violate the freedom granted under Article 25(1).

Gupta: You cannot hollow out religion entirely, but if it needs change and if done somebody cannot use 25(1) against it.

SC: According to you, denomination and sampradaya are effectively the same thing for constitutional purposes.

Gupta: For the purposes of the Constitution, yes. In another context or document, it may mean something else altogether.

Now, if that is the position, then what exists is a group of individuals who are given certain rights.

Take Shirur Mutt. There was never any serious dispute there as to whether it was a religious denomination. Why? Because they were disciples of Madhavacharya, and within that, a subgroup of Shivalli Brahmins. The Court looked at the definition and said this obviously falls within the concept of a denomination.

It was not something requiring extensive adjudication. But later cases did raise difficult questions, and the Court continued with this broad classification.

The sum and substance of the later judgments is that on one side were institutions like mutts, organised around a religious leader, disciples and a body of doctrine, often traceable to texts and teachings. On the other side were general Hindu temples where no particular body of precepts or identifiable sectarian doctrine existed.

Take the Ramakrishna Mission. It is a religious denomination. It was founded by Swami Vivekananda and fellow disciples of Ramakrishna Paramahamsa. Ramakrishna himself was not part of the Mission. He was a priest at a Kali temple. His teachings later became the foundation around which followers organised themselves into a denomination.

Now, one passage illustrates how this tradition historically evolved in India.

SC: Yes, at least some judgments have said that. But there are many denominations within Hinduism. The framers were conscious that various schools of thought and philosophies existed, propagated through mutts and similar institutions. Because there was no better word available, the Constitution used the expression “denomination.”

SC: But do not make it too rigid. Give it flexibility.

Gupta: Certainly, My Lord. We have no difficulty with flexibility. But what we respectfully oppose is equating denomination entirely with religion itself.

Justice Kumar: No, you are right. Use it flexibly, but not as synonymous with the whole religion.

Gupta: Exactly, My Lord. My respectful submission is that these denominations were historically seen as sectarian streams or organised paths distinct to some extent from the mainstream. That is perhaps why constitutional protection was thought necessary.

This is ultimately a concept the Court is still trying to discover and define. It is not easy. Even linguistically, the Constitution in Hindi distinguishes between Dharma for religion and Dharmik Sampradaya for denomination. They are not the same thing.

Before I conclude, three brief points. First, mere bona fide belief cannot by itself create a religious denomination. Second, one must first identify the denomination and only then identify a section thereof. Not the other way around. Third, there can be no non religious denomination under Article 26.

Senior Advocate Vijay Hansaria: If Article 26 is treated as part of Article 25(1), then a law made under Article 25(2), which begins with the expression “Nothing in this article shall affect the operation of any existing law or prevent the State from making any law,” would necessarily prevail.

My submission is that the State can make a law which may even trench upon what is otherwise protected under Article 25(1). And if Article 26 is merely a manifestation of Article 25(1), then such a law can also operate notwithstanding Article 26.

A law under Article 25(2) will therefore override protections flowing from Article 25(1) and Article 26. That is my respectful submission.

Such legislation may be enacted either for social welfare and reform or for throwing open Hindu religious institutions of a public character to all sections and classes.

If such a law is challenged on the ground that it violates Article 26, that challenge cannot succeed because Article 26 is controlled by Article 25(2).

Senior Advocate Sanjay Hegde: I appear on behalf of the rationalists. The rationalists in this matter are Dr Amitabh Dabholkar and Ms Jagad. They are members of the Maharashtra Andhashraddha Nirmulan Samiti.

Your Lordships may recall that Dr Amitabh Dabholkar’s father, Dr Narendra Dabholkar, was assassinated in 2013. That was followed by the murders of Comrade Pansare, Professor Kalburgi and Gauri Lankesh.

It is our respectful submission that there are several accretions to religion, all claiming religious sanction, which have been exploited and which ought not to receive the protective cover of religion.

Senior Advocate Sanjay Hegde: Because I stand in the proud tradition of somebody from the region from which both Shirur Mutt and Venkataramana Devaru originated. Mr. Arvind Kumar has a slight smile at that, My Lords. It is from that district.

I also come from the tradition of BN Rau and B Shiva Rao, who helped frame the Constitution.

Speaking from a rationalist perspective, what does rationalism mean? Rationalists are not necessarily atheists. We are people who say that everything, including religion, must pass through the filter of reason.

This rationalist principle is also relevant to the constitutional history and to the history behind these provisions themselves. Because the Constitution was forged in a particular historical moment.

We are a deeply religious and ritualistic country. But our Constitution was written not merely against the backdrop of a struggle against imperialism. It was also forged amidst a social struggle within Indian society itself.

Today, we are almost at the 101st anniversary of where this story truly begins in Kerala, not with Sabarimala, but with the Vaikom Satyagraha of 1925.

At Vaikom, not only were certain people prohibited from entering the temple, even the roads surrounding the temple were inaccessible to the depressed classes and to several other castes.

The satyagraha against this was supported by Mahatma Gandhi. Among those who participated in it was Periyar. And Periyar later went on to say that there is no God.

Senior Advocate Sanjay Hegde: What happens when people come together collectively? Persons who worship together in the same manner may form a denomination.

There are people, like Dr Dhavan, who are Arya Samajis. Arya Samaj itself emerged from a rationalist impulse. When Mool Shankar of Gujarat saw rats eating the prasad placed on a Shivling, he questioned why idols should be worshipped at all. He said we should return to the Vedas and perform only Vedic rites. That is how one denomination came into existence.

But denominational rights are ultimately collective rights. A denomination does not necessarily have to be a juristic entity. No greater right is conferred upon it beyond what is collectively possessed by the individuals who constitute it.

That is why Article 25 itself says that the right is subject to the other provisions of Part III. Individuals then come together, congregate and form a denomination. What additional rights do they obtain? The right to establish and maintain institutions for religious purposes, to own and acquire property, to administer such property in accordance with law, and to manage their own affairs in matters of religion.

Now, against whom are these denominational rights asserted? Not merely against the outside world. They may also be asserted against the orthodoxy within one’s own religion.

If I may illustrate, without meaning any disrespect, suppose the orthodox position within a religion is that there is only one God and one Prophet. But a denomination emerges saying yes, there is God and there is the Prophet, but there is also a subsequent prophet. Then that denomination may claim the right to manage its own affairs in matters of religion against the orthodoxy of the parent faith itself.

That, perhaps, is one possible way of understanding denominational rights.

Senior Advocate Sanjay Hegde: I was once in a cathedral in Russia. It was extremely cold and I was wearing a cap. In India, covering one’s head inside a religious place is often regarded as respectful. But there, it was the opposite. As a mark of respect, one had to remove the cap.

So when you approach a religious place, that itself is part of ordinary human respect and conduct.

Over time, however, the temple became one where everybody entered and worshipped. The denomination then claimed: we established this temple, we have the right to manage our own affairs, should that right now be completely negated? Is there not at least some period or occasion during which we may exclusively preserve our own practice?

That is why this Court attempted a harmonisation. The Court said that where the denominational right does not completely extinguish the right of entry of others, then limited exclusivity may be permitted.

But suppose the Gowda Saraswat Brahmins of Mulki were to say that despite the temple now being a public temple, only members of their own sect may worship within the temple courtyard and everyone else must remain outside. Then would that not clearly violate the Constitution? My respectful submission is that in such a case, the principle of temple entry must prevail fully.

Senior Advocate Sanjay Hegde: The next illustration again comes from my hometown of Udupi. In Udupi, a lower caste devotee, Kanakadasa, was denied entry into the temple. Your Lordships know that in most Hindu temples, the deity faces eastward.

When Kanakadasa was denied entry, he remained outside the temple and continued singing bhajans and devotional songs. The legend says that eventually the deity itself turned around, broke open the rear wall, and granted him darshan.

The moral I draw from that story is this, God does not discriminate, man does.

A similar legend exists in the east. Your Lordships may recall that in the Jagannath Temple, Bhakta Salabega was denied entry. He stood outside. Later, during the Rath Yatra, the chariot itself would not move until Bhakta Salabega was granted darshan.

Likewise, in the Bhakti tradition associated with Pandharpur, people from all backgrounds would gather during the harvest season, but certain communities were still denied entry. They could only go up to the samadhi of Chokhamela.

Dr Ambedkar himself reflected upon this exclusion. Chokhamela’s very bones, it is said, continued to utter “Vithala, Vithala” even after death. The anguish of exclusion found expression in the poetry and devotion of saints like Chokhamela.

And coming to more modern times, when Mrs. Ambedkar was seriously ill and wished to go to Pandharpur, Dr Ambedkar reportedly told her: “I will build you a new Pandharpur.”

Discrimination has not vanished. Today, the Bhim Granth that we place our faith in is the Constitution of India itself.

Justice Nagarathna: The common factor in all the examples you have cited is that they were all great devotees. The Lord appeared to them because of their devotion.

Senior Advocate Sanjay Hegde: Indeed, My Lords. That is the quality of a believer. But the Lord does not turn away any believer, or even someone with only partial belief, so long as the person comes respectfully. It is not the province of man to push away anyone who comes with respect, or even without belief. Belief itself may come later.

Senior Advocate Sanjay Hegde: So lines have been drawn, and any lines drawn by the State should not be totally exclusionary in nature. There has to be a reason. And I just want to show that this is not only one government that did it, the Government of Gujarat...

See, there is no force. Nobody is forced to do Urulu Seva or what you call... there is a particular seva in Udupi. Nobody is forcing anybody. A person who consciously wants to do it is attempting to do it. In a religious public place, in a religious public place, the law can... it is my respectful submission that in a religious public place, as a matter of social reform, the law can get in. Because what happens in a religious public place then transmutes to society. My Lords, it is like this. If you are forcing every person who visits the temple to perform Made Snana, definitely the State can step in. Because it is a matter of their conscience.

Justice BV Nagarathna: Please, My Lords, if you do not want to do it, they are doing it.

Senior Advocate Sanjay Hegde: But if you... even if you want to do it, do not do it in a public place. Even if you want to do it, you will not do it in a public place. That the State can certainly say, My Lords. That is my submission. Let me give Your Lordships another example. Today there is a temple in Uttarakhand which says that unless you have Panchagavya, you will not enter the temple. That is a sampradaya, a new sampradaya. It will turn away many of us who may want to visit it. We may visit the Char Dham, we will not visit the Gangotri.

Justice BV Nagarathna: Can this... a practice wearing religious clothes is so irrational... today you are not examining...

Senior Advocate Sanjay Hegde: I am very grateful to Your Lordships for that question and that is precisely why. I am very grateful for that intervention, and My Lord, that gives me an opportunity to request Your Lordships once again that please do not see this only through the lens of Sabarimala.

Senior Advocate Menaka Guruswamy: I appear in the IA filed by Swami Agnivesh. When I started practicing law, I was a junior in the office of the then Attorney General, Mr Ashok Desai, who was my senior. I began practice when I was twenty two years old.

When I first entered these courtrooms, I used to come around 9:30 am or 9:45 am in the morning. The Attorney General’s office was upstairs. We would have conferences. And before court began, I would walk from courtroom to courtroom, excited simply to be inside the Supreme Court.

I looked at the walls, and I saw not one woman.

That is why the issue Your Lordships are dealing with today is so important in constitutional law, because exclusion takes many forms and operates in many ways, including at the highest institutions of justice. So it is my hope...

SC: You know, it is a strange thing. Depending on whether you succeed, perhaps after some years people may come here and say: where are the men?

Senior Advocate Menaka Guruswamy: My Lords, perhaps one day we will have a nine judge Bench entirely of women. My Lady knows that Justice Ruth Bader Ginsburg in the United States was once asked: how many women judges are enough? And she answered: when all nine are women.

SC: One Supreme Court Bench once said that we do not want to see women only in portraits. We want to see them alive before us.

Senior Advocate Menaka Guruswamy: And that is precisely the point, My Lords.

It is my hope that when Justice Nagarathna becomes Chief Justice, we will finally have that first portrait on these walls.

And may I also add that it would only be fitting if Ms. Indira Jaising’s portrait were also placed here, because she has defended the Constitution throughout her career.

Senior Advocate Jaising: I had Made it very clear, My Lord, my freedom... I do not want all this... never mind.

Hearing to resume post lunch

Senior Advocate Menaka Guruswamy: There are four propositions that I would like to advance, My Lords and My Ladies, which I believe are distinct from what has been urged before.

The first proposition is this: the Constitution envisages the reform of Hinduism, and Hinduism itself has confidently accommodated such reforms. I will substantiate this submission. That, in fact, reflects the confidence of the religion itself, that it has engaged with and accommodated reform over time.

The second proposition concerns the language of Article 26. Your Lordships will notice that the Constitution uses the word “manage” and not “control.” This distinction has not been advanced before.

The use of the word “manage” in Article 26, instead of “control,” reflects the constitutional intent to harmonise denominational rights with the individual freedoms protected under Article 25. I will demonstrate this through constitutional references showing where the Constitution uses the language of “control” and where it uses “manage” or “management,” and how these expressions signify very different zones of power.

Fourthly, the test of proportionality, and this speaks to the point raised by Justice Bagchi yesterday. The test of proportionality ought to be employed in resolving conflicts between individual rights and group rights, as well as competing claims inter se. I will take Your Lordships through that doctrine.

Morality under Articles 25 and 26 is ultimately an extension of the core constitutional values. Whatever terminology we may use .. constitutional morality, constitutional ethos, or otherwise . . what is really being referred to are the foundational values of the Constitution itself.

Guruswamy: The words “sections of Hindus” in Article 25(2)(b) include women of all age groups within Hinduism. Why do I say that the Constitution envisages the reform of Hinduism and that Hinduism itself has confidently accommodated such reform? First, textually. The Indian constitutional framework occupies a unique position in constitutional law. Unlike Western constitutional democracies such as the United States or Germany, where religious freedom is conceived in largely unfettered terms, our constitutional ethos is distinct. In the United States, Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. In Germany too, freedom of faith and conscience and the undisturbed practice of religion are guaranteed in inviolable terms. The Western ethos, put bluntly, is that the State does not interfere. That is not our constitutional ethos. Our Constitution reflects confidence both in the faiths we profess and in the Constitution we hold dear. That is the Indian way and that is why we are before Your Lordships. This framework begins even before Articles 25 and 26 and is embedded across the constitutional text itself. Under the French conception of laïcité, the State is non religious. In India, the State is religiously agnostic, but it also reforms. We are in that sense a classical Indian welfare state. That is what makes Indian constitutionalism unique. Not merely because we have freedom of speech and expression or other familiar rights, but because our Constitution consciously enters into ways of life in order to reform society itself. Please see paragraph 1.4 at the bottom of page 3. The constitutional framework for reform within Hinduism is reflected in provisions aimed at eradicating practices such as caste discrimination and untouchability. Even before Articles 25 and 26, Your Lordships may see Articles 15(2), 15(3) and 15(4). Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth. Article 15(2)(b) specifically refers to wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to public use. These provisions exist because caste exclusion historically operated in precisely these spaces. Then please see Articles 15(3) and 15(4), which permit special provisions for women, children, socially and educationally backward classes, Scheduled Castes and Scheduled Tribes. The Constitution therefore deliberately wades deeply into accumulated structures of discrimination that existed in Indian society for centuries.

Senior Advocate Guruswamy: ... this is in fact the revolutionary nature of the Constitution, which does not believe itself to be an instrument located in a land which does not have a deep and intimate relationship with religion and faith. It understands that it is an instrument of change in a land of faith, of belief, where religion will be a guiding factor, but also has the confidence to say that we must reform. That is the confidence that it has.

And while the Constitution is being written, this is not happening in isolation. The textual provisions are not happening in isolation. The point that I will demonstrate to Your Lordships is that the temple reform statutes, the temple entry provisions, are also all being passed in the late 1940s as the Constitution is being written. You are having this happen simultaneously.

So in the morning, the Constituent body sat as Parliament, and in the afternoon, that same Constituent body sat as the Constituent Assembly.

And might I also say, My Lords, they were not only enacting State enactments. I am coming to what happens in the context of the Hindu Code reforms. I am coming to this, My Lords. These are central legislations.

And might I say, the fortitude of the framers, that not only were they a dual-function body, Parliament by morning and Constituent Assembly by afternoon, but they were also located in a city where Partition-era refugees were flowing in. And they could see that as they were sitting in that Constituent chamber.

So the burden of imagining a new nation was never intended to be a new nation without faith. It was intended to be a faith which was open and inclusive to all.

There are two ways of enhancing your faith in terms of numbers. One way is through propagation. The other way is through emancipation. That is also how you increase your numbers. And I think the Constitution was wise to this.

Senior Advocate Menaka Guruswamy: So our drafters were alive to the very same dilemmas that Your Lordships are confronted with seventy five years later. The difference is simply this: Your Lordships have the benefit of the introspection of the framers and the fruit of that introspection, namely the text of the Constitution itself, which reads in a particular manner. Your Lordships also have the benefit of knowing that Parliament, even at the founding of the Republic and in extraordinarily difficult times, had the courage to enter the domain of law and enact social reform. As Mr. Munshi would say, this was in the context of marriage, divorce, inheritance, succession, guardianship and maintenance. So to that extent, if I may say so a little cheekily, Your Lordships have a somewhat lesser task than the framers had at that time, particularly when they were drafting the Constitution with Partition unfolding outside this very building.

Justice Amanullah: You are trying to juxtapose control with management . They are completely different. Control is with regard to institution create

A cooperative society has a managing committee. Here you establish an org and you manage it. Here control is with regard to body created and then managing it.

Senior Advocate Menaka Guruswamy: When you control an institution, when you control a body corporate, when you control a corporate society, there are many things that you do in addition to what you do when you merely manage. Those additional elements include coming together through articles of association, putting in place rules, putting in place an institutional framework. Here, the degree of autonomy is of a lesser nature. That is the only point I am trying to make. The point is simply this: management under Article 26 reflects a lesser degree of autonomy than control.

Senior Advocate Menaka Guruswamy: Judicial Precedents have to be harmonised. Therefore, Articles 25 and 26 must also be harmonised in situations of possible constitutional conflict. This pertains to Devaru. Yes, this pertains to Devaru. I believe Your Lordships have already been taken through Devaru multiple times, so I will not repeat it in detail. I will only respectfully invite Your Lordships to mark paragraph 2.19 of my submissions, which refers to Riju Prasad Sharma v. State of Assam.

This is a very interesting case because it concerned the appointment of priests to the Kamakhya Temple in Guwahati, the sacred temple of the bleeding goddess. So there is some contextual relevance to the issues before Your Lordships as well.

And this is what the Court said there. I will just read paragraph 55:

“There is no need to go into all the case law in respect of Articles 25 and 26 because by now it is well settled that Article 25(2)(a) and Article 26(b), guaranteeing the right to every religious denomination to manage its own affairs in matters of religion, are subject to and can be controlled by a law contemplated under Article 25(2)(b), as both the Articles are required to be read harmoniously.”

That is really the only submission I seek to make, and Your Lordships already have the line of authority on this.

Senior Advocate Menaka Guruswamy: But the test of proportionality ought to be employed to resolve conflicts between individual rights and group rights, as well as to manage competing interests. Your Lordships have already established the proportionality test, and this is something Justice Bagchi had also brought up.

If Your Lordships see Modern Dental College and Research Centre v. State of Madhya Pradesh, at page 13 of my submissions, the Court lays down four prongs of the proportionality test. Mr. Gupta had formulated five prongs, but I will stay with the Court’s four-pronged formulation.

First, the measure restricting a right must have a legitimate goal.

Second, the measure must be a suitable means for furthering that goal, the rational connection stage.

Third, the measure must be the least restrictive and equally effective measure, the necessity stage.

Fourth and finally, the measure must not have a disproportionate impact on the right holder, the balancing stage.

Your Lordships have confronted this test in multiple cases. But one decision which encapsulates it very clearly is Sunil Kumar Singh v. Bihar Legislative Council, a recent judgment from 2026. There, Your Lordships held that:

“The test of proportionality applies to cases where action is brought to protect rights guaranteed by the Constitution and other laws. It seeks to identify whether the restriction sought to be imposed on the right is proportionate to the objective sought to be achieved by that restriction. It often requires a comparison between the importance of the public purpose behind the restriction on the one hand and the affected rights on the other. In applying the proportionality test, the Court would need to assess the nature of the contested religious practice and the significance of its continuance against the basic and inalienable rights guaranteed to the individual.”

Senior Advocate Menaka Guruswamy: Codification, My Lords, presents a particular challenge when Your Lordships are assessing questions of religion or faith. This is the actual difficulty legislators themselves confront. If faith and religion are allowed to remain dynamic and evolve through lived practice, then through custom and social change one may naturally witness progressive reform emerging over time.

But the problem arises when something is codified. The moment you codify, you freeze a static moment in time. You capture, for example, a social or religious understanding from 1963, codify it into law, and then continue interpreting that frozen position sixty years later. That is the problem with codification in matters of religion, faith and personal laws. These systems were not originally intended to be rigidly codified.

Where did codification come from? We inherited it because, as a colonial society, we adopted a particular legal system and mode of governance. But if tradition and religion had been allowed to evolve organically, one would actually see progressive and emancipatory practices emerge naturally over time. Society moves ahead. Women begin occupying public spaces. People increasingly express faith in different ways. Divergences within faith traditions emerge and evolve.

The difficulty with codification is precisely this: what may have reflected a social position in 1963 is now being judicially assessed in 2026. So what interpretive tool should Your Lordships employ? It must necessarily be constitutional values. What else can it be? Tradition itself is not stagnant. Codified law is stagnant.

Therefore, when Your Lordships are confronted with codified law in matters of faith, you must interpret it through the larger codified framework of the Constitution itself and through constitutional values. There is no other interpretive lens available.

Finally, My Lords, at pages 16 and 17 of my submissions, I have briefly addressed the issue of morality, which Your Lordships have also been considering. But one important point made by Justice Sundresh two days ago deserves particular attention. His Lordship referred to Article 51A, the chapter on Fundamental Duties.

And within Article 51A, Your Lordships will find a constitutional duty requiring citizens to renounce practices derogatory to the dignity of women. That itself becomes another constitutional marker. It reflects a constitutional expectation that both the State and society are to be guided by these values.

Guruswamy: My Lords, finally in conclusion, a restrictive interpretation of the phrase “section of Hindus” would effectively wipe out the rights of Hindu women, who are included within the statutory definition of Hindus under the Act, to practice their religious beliefs and customs. This becomes particularly problematic when the right of a denomination to manage its religious affairs does not include a right to deny temple entry to any section or class of Hindus.

Senior Advocate Shadan Farasat: I appear in Intervention Application No. 469571. There are two professors involved. One is a professor of social science, the other a professor of political science. One belongs to a Scheduled Caste community. They are also married to each other and have worked extensively on issues of gender justice.

But in a matter like this before a nine judge Bench, Your Lordships are primarily concerned with the constitutional text rather than outcomes. Therefore, I will confine myself strictly to the text on all four issues. I have handed over my written submissions.

If Your Lordships would just keep open my written submissions and a copy of the Constitution, that is all I will refer to. Nothing else. I will try to conclude within twenty to twenty five minutes. I will be very swift. Your Lordships will not have any complaint on that score, I can assure you.

The first question I am addressing directly concerns constitutional morality, which is question number four. Your Lordships may kindly turn to page 4 of my written submissions.

Farasat: In a case like this, it is somewhat easy to present a false binary before the Court: is it constitutional morality or is it popular morality? My respectful submission is that it is both. It is not a question of either-or.

Your Lordships will notice how the question itself has been framed. The question is whether the word “morality” in Articles 25 and 26 is meant to include constitutional morality. The framing is conscious. It does not ask whether morality means constitutional morality exclusively.

My submission is that it includes both.

Now how is that so? What is constitutional morality? The judgments dealing with constitutional morality derive it primarily from the values embedded in the Constitution, especially the Preamble. I have extracted the Preamble at page 4 of my submissions.

The Preamble begins with the words “We, the people of India,” and then speaks of justice, liberty, equality and fraternity, and finally says “give to ourselves.”

Therefore, if these constitutional values are values which the people of India have given to themselves, they cannot simultaneously be excluded from public morality. They are necessarily also part of public morality...

Senior Advocate Shadan Farasat: In paragraph 13 of my written submissions, I have referred to a 2025 survey which states that more than 50 percent of Indians are against inter caste marriages and more than 60 percent are against inter religious marriages. If that is taken to represent public morality in 2025, Your Lordships would still not enforce it.

CJI Kant: Such surveys are themselves problematic. Everybody knows how these are tailored and constructed.

Senior Advocate Shadan Farasat: May I say this, Your Lordships may ignore the survey entirely for the moment. Let us assume what Your Lordships are saying. But Your Lordships would still agree with me on this much: that at a given point in time, the prejudices prevailing within society may in fact be held by the majority. That is possible. It has happened historically.

CJI Kant: But one must be careful in relying upon such material. These are often produced with a particular agenda in the guise of academic work. One should not place excessive reliance on them.

Senior Advocate Shadan Farasat: I am only making a limited point. In a given subset of society, at a given point in time, prejudice may prevail. There may have been practices which a majority once supported, but which today are regarded very differently. That is all I seek to demonstrate.

Justice Nagarathna: Every individual has a right to marry whom he or she chooses. Why should prejudice matter?

Senior Advocate Shadan Farasat: Precisely, My Lords. I am saying that society itself may often be driven by prejudice.

CJI Kant: No, but even these surveys depend entirely on whom you ask. If you survey parents and grandparents, you may get one result. If you survey younger people of marriageable age, you may get a completely different result.

Senior Advocate Shadan Farasat: And that is exactly my point, My Lords. It depends on the selective class chosen for the survey. That is why Your Lordships are rightly cautious about relying upon such surveys. But the broader point remains that public attitudes themselves evolve and change over time.

Advocate Shraddha Deshmukh: the individual rights protected under Articles 15, 16, 23, 29(2) and 51A(e) are all individual rights insofar as they determine rights of access, rights of opportunity and rights of employment.

As far as the institutional right under Article 26 goes, My Lords have already seen where Article 30 is provided for. Article 30 guarantees to minorities, including religious minorities, the right to establish educational institutions, which is in substance similar to a right under Article 26(a).

Then there is the State category. This is a very interesting category, My Lords, with regard to secular activity. If Your Lordships see page 9 at the bottom.

The first provision I have highlighted as an instance of secular activity exercised by the State under the Constitution is the right of citizenship. Although Articles 5 to 11 nowhere use the word “religion” in the constitutional text, during the Constituent Assembly debates one of the questions raised was whether religion could become a ground for conferring citizenship rights in India. That was expressly rejected.

If I may read only the highlighted portion from Shri Alladi Krishnaswamy Iyer at the bottom of page 9 in italics:

“But we cannot on any racial or religious or other grounds make a distinction between one kind of person and another or one sect of persons and another sect of persons having regard to our commitments and the formulation of a policy on various occasions.”

So therefore, religion as a basis for determining citizenship was outrightly rejected by the framers because citizenship was conceived as a secular constitutional activity.

Then comes Article 17.

There was also extensive debate regarding personal laws. This is particularly interesting because Sheikh Mohammed Ismail, during the debate on draft Article 19, which later became Article 25, specifically proposed an additional clause. If Your Lordships see point C at page 10, I will just read that portion:

“Nothing in clause (2) of this article shall affect the rights of any citizen to follow the personal law of the group or the community to which he belongs or professes to belong.”

So he specifically wanted this protection to be incorporated into Article 25 itself.

Dr. B.R. Ambedkar rejected this proposal and stated that in a secular State, religion should not govern all human activities and that personal law should be divorced from religion.

So the interplay between religion and personal law was explicitly debated in the Constituent Assembly and the framers consciously refused to give personal laws absolute immunity. They recognised the power of the State to regulate personal laws.

Then under Article 26 there is the right of a denomination to administer property subject to law. And under Article 325, no person can be excluded from the electoral roll only on grounds of religion.

These are all examples of secular aspects connected with religion where the Constitution nevertheless preserves regulatory power with the State.

Advocate Shraddha Deshmukh: My Lords, coming to the second prong, very briefly, with regard to what I would call the unhappy marriage of the ERP doctrine with constitutional morality, may I invite Your Lordships’ attention to page 15 of my submissions. We have prepared a simple table there and I will not burden Your Lordships by reading through it in entirety. I only wish to demonstrate the uneasy evolution of the ERP doctrine over the years.

In Shirur Mutt, the Court said religion enjoys autonomy. In Haji Ali, the test became one of optional versus obligatory practice. In Dargah Committee, the inquiry shifted to whether something was essential and integral as opposed to mere superstition. In Acharya Jagdishwarananda, antiquity became relevant. Then in Shayara Bano, the inquiry became whether removing the practice would alter the essential character of the religion itself.

So over the last seventy three years, the ERP doctrine has undergone a remarkable evolution and there has never been one standard formula. Therefore, the ERP test is not a straitjacket formula.

But there is another difficulty. If today we are to enter into an exercise of determining what is essential and what is not essential, then one must remember that even practices such as sati may once have been defended as essential practices. Yet they were abolished because they violated other guarantees contained in Part III of the Constitution.

Justice Nagarathna: Sati... It was a social practice.

Deshmukh: My Lords, I bow down to that. And under Article 25(2)(b), we are also revisiting such practices. Therefore, my respectful submission is that whenever the Court examines essential religious practices, the inquiry must necessarily be informed by constitutional morality, which in essence means the fundamental values embedded in the Constitution itself.

CJI Kant: Very well articulated and argued.